The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Thursday, August 19, 2004

WaPo reports on Thurlow's Bronze Star citation

In terms of the blogospheric news cycle, I'm late in commenting on the Washington Post's front-page, above-the-fold story today by staff reporter Michael Dobbs entitled "Records Counter a Critic of Kerry: Fellow Skipper's Citation Refers To Enemy Fire."

Not that that's ever stopped me before. (More timely pundits' reactions include posts by NRO's Jim Geraghty, Outside the Beltway's James Joyner, PrestoPundit Greg Ransom, InstaPundit Glenn Reynolds, Roger L. Simon, and I'm sure many others.) [Update: My media-savy friend Patterico also has a fine take on his own blog and a shorter version in my comments below.]

Some folks' reaction to the entire Swiftvets vs. Kerry controversy is, "If the Navy said Kerry was brave and deserved the medals he got, that's good enough for me, and I'm not interested in second-guessing any of this stuff." Of course, if that's your viewpoint, then WaPo's story about Larry Thurlow should also be a non-event. All this story has "revealed" is that whoever wrote up the citation for Thurlow's Bronze Star was under the impression that there was enemy fire from the shores, in addition to the obvious dangers of the sort posed by the mine that had already exploded, during the action on the Bay Hap River that resulted in Bronze Stars for both Thurlow and Kerry. We already knew, from Kerry's citation, that whoever wrote that one up was also under the same impression.

What the WaPo story has been spun to suggest — but which, read carefully, it certainly does not say — is that somehow Thurlow has contradicted himself. He hasn't.

In evidentiary terms that lawyers would use in a courtroom, the citation for Thurlow's Bronze Star couldn't be used to impeach Thurlow's testimony because it's not a prior inconsistent statement by him. It's a prior inconsistent statement by someone else — and we don't know who that someone else is, much less whether that someone else was the same person who wrote up Kerry's citation, or whether that someone may have been relying on a common source who did have first-hand knowledge of the incident. If I were to try to use this kind of evidence in court, the judge would say, "You can't impeach Mr. Thurlow's credibility with someone else's statement. And you can't use someone else's statement to prove a different version of events than Mr. Thurlow has testified to unless you can show us — at a minimum — who made that statement, and what basis he had for making it. Objection sustained!"

The reason we don't know any of those things is because, in the first instance, Sen. Kerry hasn't authorized the release of all the backup that went into his medal awards. Neither has Mr. Thurlow, yet — although he, of course, is not running for President on the basis of his war record, and all he stands to gain from this whole controversy is the joy of being attacked by Kerry's proxies. [Update: Thurlow's now agreed to sign a Standard Form 180; Kerry still ... hasn't. (Hat-tip: Patterico.)]

To his credit, WaPo reporter Dobbs apparently confronted Thurlow with the language from his citation to get his reaction before running the story, and to his further credit, he included Thurlow's reaction in the story:

"It's like a Hollywood presentation here, which wasn't the case," Thurlow said last night after being read the full text of his Bronze Star citation. "My personal feeling was always that I got the award for coming to the rescue of the boat that was mined. This casts doubt on anybody's awards. It is sickening and disgusting."

Thurlow said he would consider his award "fraudulent" if coming under enemy fire was the basis for it. "I am here to state that we weren't under fire," he said. He speculated that Kerry could have been the source of at least some of the language used in the citation.

Note that well: Thurlow's initial reaction wasn't to defend himself or his medal. Rather, it was quick agreement that if his own Bronze Star was indeed premised on the notion that he'd been under enemy small arms fire, then he didn't deserve the medal, because that didn't happen.

Thurlow's lengthier and more detailed reaction, posted today in a statement on the SwiftVets website, is entirely consistent with what he's quoted by Dobbs as having said when this "apparent conflict" was first sprung on him:

I am convinced that the language used in my citation for a Bronze Star was language taken directly from John Kerry's report which falsely described the action on the Bay Hap River as action that saw small arms fire and automatic weapons fire from both banks of the river.

To this day, I can say without a doubt in my mind, along with other accounts from my shipmates — there was no hostile enemy fire directed at my boat or at any of the five boats operating on the river that day.

I submitted no paperwork for a medal nor did I file an after action report describing the incident. To my knowledge, John Kerry was the only officer who filed a report describing his version of the incidents that occurred on the river that day.

It was not until I had left the Navy — approximately three months after I left the service — that I was notified that I was to receive a citation for my actions on that day.

I believed then as I believe now that I received my Bronze Star for my efforts to rescue the injured crewmen from swift boat number three and to conduct damage control to prevent that boat from sinking. My boat and several other swift boats went to the aid of our fellow swift boat sailors whose craft was adrift and taking on water. We provided immediate rescue and damage control to prevent boat three from sinking and to offer immediate protection and comfort to the injured crew.

After the mine exploded, leaving swift boat three dead in the water, John Kerry's boat, which was on the opposite side of the river, fled the scene. US Army Special Forces officer Jim Rassmann, who was on Kerry's boat at the time, fell off the boat and into the water. Kerry's boat returned several minutes later — under no hail of enemy gunfire — to retrieve Rassmann from the river only seconds before another boat was going to pick him up.

Kerry campaign spokespersons have conflicting accounts of this incident — the latest one being that Kerry's boat did leave but only briefly and returned under withering enemy fire to rescue Mr. Rassmann. However, none of the other boats on the river that day reported enemy fire nor was anyone wounded by small arms action. The only damage on that day was done to boat three — a result of the underwater mine. None of the other swift boats received damage from enemy gunfire.

And in a new development, Kerry campaign officials are now finally acknowledging that while Kerry's boat left the scene, none of the other boats on the river ever left the damaged swift boat. This is a direct contradiction to previous accounts made by Jim Rassmann in the Oregonian newspaper and a direct contradiction to the "No Man Left Behind" theme during the Democratic National Convention.

These ever changing accounts of the Bay Hap River incident by Kerry campaign officials leave me asking one question. If no one ever left the scene of the Bay Hap River incident, how could anyone be left behind?

But the reaction from Kerry's defenders — as if the WaPo article is some incredible "Gotcha, you bastards!" — is badly overblown. For example, former-CalPundit, now-Washington Monthly-pundit Kevin Drum added this update to a post on the SwiftVets last night after the WaPo story went online:

Finally, some documentary evidence! Unfortunately for the Swifties, it's evidence that one of them is lying.

I'm frankly disappointed in Mr. Drum, because that's not what the WaPo story shows. Evidence that someone else — we know not whom, and we know not with what basis, first-hand or otherwise — has a different version of events does not show that Thurlow is lying. And given that we know nothing that would help us evaluate the credibility of the citation-writer or the manner in which he came to believe what's in the citation, at this point the citation isn't even very strong evidence that Thurlow's wrong. In fact, it's absolutely no stronger than what's in Kerry's own citation; it adds essentially nothing to the mix, except more questions.

Mr. Drum's post was also, I thought, extremely uninformed (and I'll give him that benefit of the doubt, rather than assuming he was being disingenuous) when he asserted that this whole affair is just a swearing match. Yes, it's in part a swearing match. But gee, Kevin, the Thurlow citation was hardly the first piece of "documentary evidence" to show up here. The SwiftVets' charges are in large part based on documentary evidence like the after-action reports that don't show any bullet holes in any of the five Swift Boats that Sen. Kerry and his supporters claim were under heavy small arms fire from both banks. Maybe those after-action reports are trustworthy, or maybe they include some mistakes — just because they're written doesn't mean they're gospel. But one thing they aren't is partisan. And another thing they aren't, at this point, is complete — because Sen. Kerry insists on keeping it that way, at least for now.

WaPo's late to the party too — later than I am, and later than both hemispheres of the blogosphere and the radio and TV talk shows. I'm tempted to kvetch about just how late they are, and how unfair and biased it is that their first substantive treatment or effort at investigative reporting is spun to benefit the Kerry camp. But, eh ... who's surprised by that? What will genuinely disappoint me will be if WaPo and the mainstream media stop here — with what's likely a second-hand (or worse) account by an unidentified citation writer for a medal winner other than Sen. Kerry. That would be like limiting their Watergate coverage to a summary of the police report from the break-in. And America deserves better of its mainstream media than that, or than what WaPo has served up in its first foray into this controversy.

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Update (Thu Aug 19, 2004): The SwiftVets have also published a related statement by Van Odell regarding Mr. Thurlow, whose own statement didn't include any of the context that might have shown why his own Bronze Star was merited, enemy small arms fire or not (italics in original):

Statement By Swift Boat Veterans for Truth Member Van Odell

A courageous, soft spoken man of the Midwest, Larry Thurlow has a heart bigger than the great plains and a commitment to truth and honesty that is boundless. He is under attack, because John Kerry is feeling the heat of truth at the hands of this honest man and others like him.

The Kerry Campaign is attacking the truthfulness of this man and the Bronze Star he so richly deserves for his actions on March 13, 1969. I was there. I saw what happened.

The mine’s detonation lifted PCF-3 completely out of the water just yards ahead of me. All boats commenced suppression fire in case enemy small arms fire ensued. None did.

All boats came to the aid of PCF-3, except one: John Kerry’s boat. Kerry fled.

Larry Thurlow piloted his boat straight toward the mine-damaged PCF-3 from which thick, black smoke billowed. He jumped aboard and personally led damage control operations that saved the boat and rescue operations that saved the lives of badly wounded men. Larry’s leadership was in the highest traditions of the naval service. His leadership allowed the other men and boats of the mission to exit the river safely. This "single act of meritorious service" — the chief requirement of the Bronze Star — should be honored, not ridiculed, by the Kerry campaign and its allies in the mainstream media.

To reiterate, only one enemy weapon was deployed that day — the command-detonated submerged mine that disabled PCF-3. Larry Thurlow's citation contained references to "enemy small arms and automatic weapons fire," because that was the language chosen by John Kerry who penned the "spot report" on the action that day. There was no "enemy small arms and automatic weapons fire" received that day. John Kerry’s report was fiction — a hoax on the entire chain of command. Larry Thurlow's heroism and meritorious service, however, is real.

To me Larry is one of the heroes of our country. He is a man who served his country when called and who returned home to be a productive citizen. Larry and men like him are the strong backbone of our society. I am proud to have served with him.

And in another statement, SwiftVet Jack Chenoweth takes strong issue with WaPo reporter Dobbs' phrasing when he wrote that "Two other Swift boat skippers who were direct participants in the March 13, 1969, mine explosion on the Bay Hap, Jack Chenoweth and Richard Pees, have said they do not remember coming under 'enemy fire.'" Mr. Chenoweth writes,

Mr. Dobbs is entitled to take whatever position he wants on the issue of who is telling the truth, but it is not right for him to mischaracterize my remarks so that it looks like I didn't "remember" whether there was enemy fire. I remember vividly. There was no enemy fire.

This reminds me of my habitual response as a trial lawyer, whenever a witness answers a question with "I don't recall." Unless I'm asleep, I immediately shoot back with, "Are you saying you have no recollection one way or the other, or are you saying that you have a clear, present recollection to the effect that [such and such] definitely did not happen?" Mr. Chenoweth understandably wants the record to be clear that in speaking with reporter Dobbs, Mr. Chenoweth was saying the latter.

Comments

Thanks, rob (I think)! I didn't call this one a "fisking" just because I don't have that much to quibble with about the WaPo article itself. I'm just hoping that having examined the elephant's toenail, so to speak, and made a not very startling comment about it, WaPo will take as close and careful a look at the rest of the elephant.

I should perhaps note that this same topic (the WaPo story about Mr. Thurlow) has been discussed extensively in the comments to my previous post about Judicial Watch.

I just watched O'Neill and Tom Oliphant on Newshour (O'Neill was devastatingly competent, Oliphant -- smarmy and supercillious), and I learned something new which bears on this discussion.

O'Neill said it took AN HOUR AND A HALF to rescue the 3 boat -- during which time they took NO HOSTILE FIRE. This is the first I've heard of the actual timeframes involved.

Well, we have a couple of issues with this new (to me) information:

1. Now all five boats were on-scene for an hour and a half and no casualties from small arms fire were recorded and there were no reports of bullet damage to the boats.

2. All of Rassmann's claims to date have him under fire WHILE HE WAS IN THE WATER. But, by all accounts Kerry picked Rassmann up about five minutes or so after the 3 boat was mined. So I'd like the next guy to interview Rassmann to ask him what he observed as he was drying himself off FOR THE NEXT HOUR AND TWENTYFIVE MINUTES. Was there hostile fire then? Did Rassmann duck? Did Rassmann fire back?

You'll get over that shortly. Mr. Drum specializes in the logical fallacy--in this case circular reasoning; using what is in dispute as evidence for his point.

As I've pointed out elsewhere on this blog, Rassmann's story (one version, anyway) inadvertently destroys the Kerry version. If Rassman found himself in the river "all alone", then that had to be because Kerry fled downriver. If Rassmann had been overboarded by either the mine that hit PCF-3 (one of his versions) or by a second mine they hit while heading toward the wounded PCF-3 (a second version) then Rassmann would have found himself in the company of the PCF-3 crewmen who'd been blown off that boat.

A couple of other things are odd about Rassmann's tales. Wouldn't he have been wearing a floatation device such as a Mae West? If so, how'd he manage to get to the bottom of the river? And, would the VC set up on BOTH sides of the narrow river and essentially take the chance of shooting each other?

Compared to the other high-traffic consistently leftwing bloggers like dKoS, Josh Marshall, or Atrios, Kevin Drum's usually more open-minded. I rarely agree with him, but I have considerably more respect for him than I do for any of those other three. His commenters are considerably less, shall we say, responsive to facts and logic than he is himself, but generally they're less nasty than the commenters on dKoS or Atrios. Drum's the only one I have blogrolled.

Nice post. However, one thing confuses me. Reading the Post story, I would guess that Mr. Thurlow had read the citation write-up at the time he received the citation -- yet he apparently didn't reject the award or try to correct the record. This seems odd, given that he has described the scenario set forth in the citation as "fraudulent."

His statement doesn't appear to address this issue. Do you have any thoughts on this?

It was not until I had left the Navy — approximately three months after I left the service — that I was notified that I was to receive a citation for my actions on that day.

I suppose one can argue that he should have read the citation then, and should have made some reaction to the reference to enemy small arms fire. His reaction to the WaPo reporter, though, reads to me like someone genuinely surprised and learning of the citation language for the first time, rather than the reaction of someone caught in a long-standing cover-up. I think it'd be a stretch to argue that he had some duty to flyspeck the citation language, or that he's "adopted" the wording of the citation by his failure to read it or his silence. Mr. Thurlow, after all, isn't running for President on the basis of his chestful of medals. But his failure to do so, for whatever reason, does seem to me to be the strongest argument for the Kerry camp that can fairly be made from this whole chain of events.

Great post. As an attorney I enjoy very much the debate about proof and evidence versus speculation and hearsay. However, what's more interesting to me is that the debate on TV tries to hold the accusers to "beyond a reasonable doubt" when this is a political matter. The standard in the political mind is more likely the civil standard of "more likely than not." The MSM tries its damnedest to hold the SwiftVets to a higher level of proof than that needed to get the 50 +1 voter to turn to Bush. Thoughts.

I just saw O'Neill on Hannity and Colmes. First, the Kerry campaign promised to have a spokesman on with O'Neill, but withdrew this afternoon. This resulted in O'Neill being able to speak without interruption. I guess the Kerry strategy is to let the media work over the vets before they expose themselves to any further debates. The last minute withdrawal from the program by the Kerry campaign sure looked cowardly to me, but I was glad to finally hear what O'Neill had to say without being shouted down (like on Hardball, Crossfire, etc.)

Secondly, O'Neill, in commenting on the WaPo story, said they Swiftvets group contacted the reporter on Monday and Tuesday of this week (plenty of time before the story ran), begging the reporter to interview the 7 or 8 Swiftvet eyewitnesses who were in town (They were meeting in the Key Bridge Marriott, just across the river from Georgetown.), or any of the 50 Swiftsvet who had gathered for a meeting. The reporter refused to do so. This too struck me as cowardly.

Well, Birkel, the mainstream media indeed lack a clear standard for the ultimate burden of proof a proponent of a position must satisfy. Ultimately I suppose that's in the minds of their readers/viewers. But what's disturbing, as you point out, is that the MSM lack a consistent standard for what's "admissible"  in this context, what they deign to notice and report on at all. They also routinely (and probably necessarily) ignore evidentiary concepts like "hearsay" and "competency"; predicates are laid in a haphazard fashion, if at all; and of course, they lack the discipline imposed by having an opponent to make objections and a judge to rule upon them. Journalists have no licensing requirements, nor any code of ethics with any teeth. Any tribunal that employed journalistic standards we'd describe as a "kangaroo court," but in the world of MSM, the "media circus" is business as usual.

Mind you, I'm not arguing that the SwiftVets vs. Kerry dispute should or could be played out in a judicial forum. But it would be entertaining to watch, if it could be.

Yes, it was a compliment -- how can any trial lawyer not be when placed in the same company as the immortal Erskine?

Reading some of these versions of the story, I think I've hit on something that should be checked out. Most stories now agree Rassman was on Kerry's boat. And the stories now agree Kerry's boat turned swiftly and made tracks (for how long is disputed). If Rassman was indeed on the pilot house having a cookie as he has said (i.e. not holding on to anything and not tactical), and if Kerry's boat turned suddenly after the explosion, I'd surmise the reason Rassman fell off the boat into the water was Kerry's high speed manoever. I suspect also Kerry didn't realize at first that Rassman was missing until he was down river a bit. Hmmm. I've seen people fall off motor boats that turned suddenly at speed, and, in the army, seen people almost fall of of tracked vehicles that made sudden turns without warning. Curious.

rob, that's just how Sen. John F. Kerry described Rassmann falling off his boat in his 1997 eulogy for crewman Thomas Belodeau, which Kerry had inserted into the Congressional Record, and about which I've recently posted at considerable length. Since it's inconsistent both with Rassmann's version(s) and some of Kerry's own versions on other occasions, I'm sorta surprised there hasn't been more notice of this eulogy either in the blogosphere or the mainstream media. May be my own fault  I was so concerned not to seem ghoulish by quoting from a eulogy that I may have buried my lede.

Check. In that version, he has Rassman bringing a machine gun forward, not sitting eating a cookie. I suppose either is plausible, but if Rassman were carrying a machine gun and fell off, there would be a missing machine gun that had to be reported (paperwork!) as lost in action (so it wasn't charged to someone as negligent). Since the mine was apparently unexpected, and everyone else agrees Kerry turned suddenly right away and beat feet, the cookie-munching-on-the pilot-house version is more plausible. After all, if there was no prior action, why would Rassman be bringing up a machine gun to replace one that had 'fallen apart'?

Really. Kerry is a lawyer and ought to remember enough from Evidence to know the importance of getting it straight. And, Rassman was a cop with the LASO. He should know better, too. Is it hubris or what?

Further reflection yields the following thought, which I posted as an update at my site.

Which do you find more significant?

Assume the best-case scenario for the Kerry campaign. Thurlow receives a citation months after being shipped back. He reads it and fails to take any action to correct the record.

vs.

Kerry sees that the Swift Boat Vets are accusing him of making up the incident. Releasing military records would probably establish who is telling the truth. Yet Kerry, a candidate for President of the United States, refuses to take this simple step to correct the record.

Again: which do you find more significant? When I put it that way, it seems like a no-brainer.

If the Washington Post had provided its readers the full context (Kerry's refusal to release relevant medical records), this would be the obvious way to look at the issue. As it is, it took me most of the day to realize that this is the way to frame the issue.

I have been under the impression that when someone is awarded a medal suchg as the BBronze star, the read out the actual citation and the grounds for it and it's a fairly significant event.

As nted in this blog, Kerry critic Thurlow is now claiming:

"It's like a Hollywood presentation here, which wasn't the case," Thurlow said last night after being read the full text of his Bronze Star citation. "My personal feeling was always that I got the award for coming to the rescue of the boat that was mined. This casts doubt on anybody's awards. It is sickening and disgusting."

If I'm right that awards such as the bronze star are fairly significant events, and if, when they gave Thurlow his, they read the part abourt being under fire, which Thurlow now claims didn't happen, wouldn't he at least remember from that time that the facts given were bogus?

The key point in this whole discussion is that Thurlow did not even know that he was written up for the award until he was back in CONUS. As general policy, the intended recipient of the awards was not told in advance in case it was not approved. It is not surprising that Larry Thurlow would not have bothered to "set the record straight". A lot of award recipients probably never even bothered to read the citation, and no one at that time could have foreseen that the award writer's false claim of coming under enemy fire would, over 30 years later, be significant enough to influence a presidential election.

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